April 11, 2001

No. 2--00--0112

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE RAPP delivered the opinion of the court:

Following a bench trial, defendant, Hunter K. Murdock, wasfound guilty of aggravated fleeing or attempting to elude a police officer(count I) (625 ILCS 5/11--204.1(a) (West 1998)), and unlawful possession of analtered temporary registration permit (count II) (625 ILCS 5/4--104(a)(3) (West1998)). The trial court denied defendant's posttrial motion. With respect tocount I, the circuit court sentenced defendant to serve four days in the countyjail with credit for time served, five days in the Sheriff's Work AlternativeProgram, and two years' probation. The court also ordered defendant to pay afine of $100. With respect to count II, the court sentenced defendant to twoyears' court supervision to be served concurrently with the sentence in count I.

Defendant appeals, arguing that he was not proved guiltybeyond a reasonable doubt of aggravated fleeing or attempting to elude a policeofficer where there was no evidence presented that the officer pursuing him wasin police uniform. Alternatively, he argues that, if this conviction is upheld,he is entitled to a $10 credit against his fine for time served. Defendant doesnot appeal his conviction with respect to count II. We reverse the conviction ofaggravated fleeing or attempting to elude a police officer and vacate thesentence as to that offense.

In defining the elements of the underlying offense of fleeingor attempting to elude a police officer, section 11--204(a) of the IllinoisVehicle Code (625 ILCS 5/11--204(a) (West 1998)) provides:

"(a) Any driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, wilfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer, is guilty of a Class A misdemeanor. The signal given by the peace officer may be by hand, voice, siren, red or blue light. Provided, the officer giving such signal shall be in police uniform, and, if driving a vehicle, such vehicle shall display illuminated oscillating, rotating or flashing red or blue lights which when used in conjunction with an audible horn or siren would indicate the vehicle to be an official police vehicle." (Emphasis added).

We have carefully reviewed the evidentiary record and canfind no evidence presented concerning the clothing the officer wore on the dayin question. Moreover, the State failed to ask the arresting officer whether hewas wearing a police uniform at the time of the pursuit.

The State argues that because the officer activated hisoverhead emergency lights and siren, defendant should have known that thepursuer was a police officer and the purpose of the statute would be fulfilledby upholding the conviction. We do not agree.

We are not free to rewrite the language of the legislature,which speaks for itself. See People ex rel. Gibson v. Cannon, 65 Ill. 2d366, 369 (1976) (where the language of a statute is unambiguous, the court'sfunction is to enforce the statute as enacted). The relevant inquiry is whether,after viewing the evidence in the light most favorable to the State, anyrational trier of fact could have found the essential elements of the crimebeyond a reasonable doubt. People v. Perez, 189 Ill. 2d 254, 265-66(2000). Because proof of an essential element of the offense is lacking in thiscase, we must reverse the conviction and vacate the corresponding sentence.

Although defendant argues alternatively that we should granthim a $10 credit against his fine for time served if the aggravated fleeing toelude a peace officer conviction is upheld, there is nothing against which toaward the credit in view of our decision to reverse the judgment and vacate thesentence.

Accordingly, with respect to the aggravated fleeing offense,the judgment of the circuit court of Du Page County is reversed and thecorresponding sentence is vacated.

Reversed; sentence vacated.

McLAREN and GROMETER, JJ., concur.